Bidder exclusion and antitrust enforcement
2 October 2025
In this article, we explore the competition risks of using bidder exclusion in antitrust enforcement.
Bidder exclusion temporarily bans firms that have breached competition law from participating in public procurement. It exists in many countries and is typically governed by procurement or criminal law, rather than competition law. In some jurisdictions, competition authorities can apply bidder exclusion to enforce competition law, with some becoming increasingly active in this area.
While well-intended and aimed at fighting harmful anti-competitive conduct, we argue that using bidder exclusion as an antitrust sanction is not a good idea.
We discuss three key concerns:
First, it can have an adverse effect on competition and efficiency. By acting as an entry barrier and reducing the number of competitors, it can facilitate collusion and weaken competition in public procurement.
Second, compared to corporate fines, it reduces the ability to tailor the (implicit) fine to the seriousness of the infringement. This is because ascertaining the actual cost the exclusion will have on the infringing firm is subject to a high degree of uncertainty and risk of error. As a result, it increases the risk of over-deterrence or under-deterrence compared to corporate fines.
Third, it can restrict the use or the deterrence effect of alternative types of antitrust sanctions which are arguably superior to enhance deterrence and efficiency, such as corporate fines or individual sanctions. As a consequence, the sanctions regime may become less effective and less efficient.
Our recommendation is to avoid using bidder exclusion to sanction firms that have breached competition law. Antitrust has a rich set of sanctions – both corporate and individual – which are sufficient and far better suited than bidder exclusion to fight harmful anti-competitive conduct. We advocate using these tools effectively and ambitiously across jurisdictions.